Collum, Application for Set Aside [2025] PBSA 81 (04 November 2025) [2025] PBSA 81
[1]This is an application by Collum (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel on the papers . This is an eligible decision.[2]I have considered the application on the papers. These are the dossier (consisting of 274 numbered pages), the decision (dated 2 October 2025), and the application for set aside (dated 22 October 2025). I have also seen email correspondence between the Applicant’s legal representative and the Parole Board Case Manager. Background[3]On 15 January 2019, the Applicant was convicted (in Guernsey) of importing a controlled drug to which he pleaded guilty. He received a five year sentence of imprisonment. On 3 June 2019, he was further convicted (in England) to possession of a controlled drug with intent to supply (class A, cocaine) and dangerous driving. He pleaded guilty to both charges and received consecutive sentences of 26 months and four months respectively.[4]The Applicant was 23 years old at the time of sentencing and is now 30 years old.[5]He has been released and recalled twice on this sentence. He was first released automatically on 1 June 2022 but recalled on 9 March 2023. He was re-released on 24 March 2023 after a fixed term recall. His licence was revoked on 7 September 2023, and he was returned to custody on 9 September 2023.[6]The Applicant’s sentence ends in March 2026. Application for Set Aside[7]The application for set aside has been drafted and submitted by solicitors on behalf of the Applicant and argues that the panel made an error of law.[8]These grounds are supplemented by written arguments to which reference will be made in the Discussion section below. Current Parole Review[9]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) to consider whether to direct his release. This is the Applicant’s second review since his second recall.[10]Comprehensive written legal representations dated 30 January 2025 had sought release on the papers, or an oral hearing if release was not directed at the Member Case Assessment (MCA) stage.[11]On 17 March 2025, the Applicant’s case was directed to an oral hearing. The MCA directions noted that his Community Offender Manager (COM) considered that risk could be managed in the community, although the opinion was “ nuanced ” and acknowledged a clear need for “ close oversight ”.[12]On 22 June 2025, the Panel Chair issued further directions (PCDs). These noted that the case was listed for 23 October 2025. The Panel Chair also noted that various reports were due by 28 August 2025 and gave notice that the review may be concluded on the papers (with release or a negative decision) depending on the content of those reports. Legal representations on behalf of both the Applicant and Respondent were directed by 15 September 2025.[13]The directed reports were received on time.[14]On 29 August 2025, the Public Protection Casework Section (PPCS) on behalf of the Respondent notified the Parole Board that the Respondent did not wish to make any representations.[15]No legal representations on behalf of the Applicant were submitted by the directed date of 15 September 2025.[16]On 26 September 2025, the Applicant’s legal representative emailed the Parole Board Case Manager to say that the Applicant “ has confirmed via [the email a prisoner service] that he would like for the case to be concluded on the papers, stating ‘im not a talker n rather not ave the hassle tryna explain myself’”.[17]On 29 September 2025, the Case Manager asked whether the Applicant’s legal representative wanted to submit the above in formal representations, or whether he was content for his email of 26 September to be added to the dossier.[18]The legal representative replied to say that he had nothing to submit in representations but noted that he had a video link with the Applicant booked for 8 October 2025 and would be able “ to submit something more comprehensive after that” .[19]On 2 October 2025, the panel concluded the review on the papers with no direction for release, and the decision was issued the following day.[20]Following issue of the decision, the Applicant's legal representative expressed surprise, noting that it had been made clear further representations would follow the meeting scheduled for 8 October 2025. The Case Manager acknowledged that the Panel Chair had not been advised of this and apologised for the omission.[21]The Case Manager then sought clarification from the representative as to whether he intended to submit further representations for consideration on the papers, in which case the Chair could amend the decision, or to request reinstatement of the oral hearing.[22]The legal representative confirmed that he would be submitting representations for release as part of the conclusion on the papers, although said they may change to representations requesting that the oral hearing should proceed.[23]On 10 October 2025, the legal representative sent representations in response to the negative decision, seeking release on the papers or, in the alternative, an oral hearing. It was noted that the Applicant was now prepared to give evidence at a hearing, if release was not directed on the papers.[24]The Case Manager replied to say that as the decision had been issued and that the Applicant was “ seeking an oral hearing ” then an application for set aside would be required. The Relevant Law[25]Rule 28A(1)(a) of the Parole Board Rules provides that a prisoner or the Secretary of State may apply to the Parole Board to set aside certain final decisions. Similarly, under rule 28A(1)(b), the Parole Board may seek to set aside certain final decisions on its own initiative.[26]The types of decisions eligible for set aside are set out in rule 28A(1) . Decisions concerning whether the prisoner is or is not suitable for release on licence are eligible for set aside whether made by a paper panel (rule 19(1)(a) or (b)) or by an oral hearing panel after an oral hearing (rule 25(1)) or by an oral hearing panel which makes the decision on the papers (rule 21(7)).[27]A final decision may be set aside if it is in the interests of justice to do so (rule 28A(3)(a)) and either (rule 28A(4)): a) a direction for release (or a decision not to direct release) would not have been given or made but for an error of law or fact, or b) a direction for release would not have been given if information that had not been available to Board had been available, or c) a direction for release would not have been given if a change in circumstances relating to the prisoner after the direction was given had occurred before it was given. Error of law[28]An administrative decision is unlawful under the broad heading of illegality if the panel:a. misinterprets a legal instrument relevant to the function being performed;b. has no legal authority to make the decision;c. fails to fulfil a legal duty;d. exercises discretionary power for an extraneous purpose;e. takes into account irrelevant considerations or fails to take account of relevant considerations; and/orf. improperly delegates decision-making power.[29]The task in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the panel. The instrument will normally be the Parole Board Rules, but it may also be an enunciated policy, or some other common law power. The reply on behalf of the Respondent[30]The Respondent has indicated that no representations will be made in response to this application. Discussion[31]The application for set aside argues matters of procedural unfairness in relation to submission of representations at great length. These are largely irrelevant for three reasons. First, and most fundamentally, procedural unfairness of the type alleged is outside the scope of the set aside rule. Second, the Case Manager’s failure to pass on correspondence does not, of itself, render the panel's proceedings unlawful. It was an administrative error external to the panel's decision-making. Third, the Panel Chair had already given notice of the potential for the review to be concluded on the papers, with a date for representations to be received. The Applicant’s legal representative was aware of this date and submitted nothing in response to the Panel Chair’s direction.[32]There is, however, an error of fact here. This point was not explicitly argued by the Applicant’s legal representative, and it is not my job to make his argument for him. However, he does note, in passing, that the decision erroneously stated that the Applicant was not seeking release. This is an error of fact, albeit not one argued on behalf of the Applicant, and I could therefore have chosen to ignore it and conclude now. However, in the interests of fairness, I will consider it as part of this review.[33]The decision is, unsurprisingly, largely predicated on the Applicant’s purported stance that he was not seeking release. The only information before the panel at the time it made its decision was the Applicant’s statement that he would like the case to be concluded on the papers. This is not the same as explicitly indicating that he was not seeking release.[34]I must consider whether the decision to refuse release would not have been made but for that error of fact. I note that the COM’s report of 22 August 2025 has support for release, provided that there are “ appropriate structures in place, such as licence conditions, regular monitoring and consistent engagement with support services”. The report further notes that the risk management plan is “ in place, but is limited as [the Applicant] does not meet the criteria for some services as he is a Probation Reset Case” .[35]The question to answer is essentially this: if the panel knew that the Applicant was, in fact, seeking release, would it have directed his release on the papers? I say, ‘on the papers’, rather than ‘at an oral hearing’, because at the time the decision was made there was no evidence before the panel that the Applicant would reverse his stance from wanting a conclusion on the papers back to wanting an oral hearing.[36]I first note that the MCA member was unable to direct release on the papers.[37]The COM’s most recent report presents a nuanced assessment of the Applicant’s progress. His recent custodial conduct shows measurable improvement: his last adjudication, for possession of prohibited items, was in 2024, and the most recent negative behaviour was in June 2025 for vaping in the workshop. Since that time, he has produced a consistent series of negative drug tests, suggesting sustained compliance with the prison regime and a developing ability to manage impulses and meet behavioural expectations. This progress is supported by his upgrade to enhanced status, reflecting improved conduct and engagement.[38]The report also highlights positive engagement with substance misuse and mental health services. The Applicant appears to value the support received and credits it with helping him manage his wellbeing and maintain medication compliance. He has completed the Thinking Skills Programme, describing it as highly beneficial, and can identify triggers and the impact of his behaviour on others. He has also achieved a level two qualification in bricklaying, which he views as a route to stable post-release employment, indicating a goal-oriented and constructive outlook.[39]However, the report also recognises areas of continuing concern. The Applicant remains susceptible to peer influence; a factor linked to both past offending and earlier non-compliance. His previous pattern of presenting superficial engagement, appearing motivated while showing only limited genuine participation, means his current progress must be treated with caution. Although prison staff have verified his involvement in current activities, further evaluation of the depth and consistency of that engagement had been requested. Overall, the report depicts meaningful but still fragile progress, with emerging strengths in motivation and compliance offset by continuing vulnerability to external pressures and the need for sustained work on authenticity and resilience.[40]The report further notes that the Applicant had no release accommodation available and would be subject to Probation Reset, limiting community supervision.[41]Taking all of these matters together, I am satisfied that although the panel’s statement that the Applicant was “ not seeking release ” was inaccurate, that factual error was not material to the outcome. The panel was required to apply the codified public protection test to the evidence before it, which included a history of rule-breaking in custody (albeit not recent), and the absence of confirmed release accommodation or robust community supervision. While the Applicant’s conduct has improved and his engagement appears more consistent, that progress remains relatively recent and untested in the community. On the material before the panel, notwithstanding the COM’s tentative support for release (which was explicitly qualified by concerns about community provision), it cannot be said that it would have directed release had it correctly recorded the Applicant’s position. Decision[42]For the reasons set out above, the application for set aside is refused. Stefan Fafinski 4 November 2025